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Same-Sex Couples and Custody

Alaska’s Supreme Court recently decided an issue revolving around custody of a minor child born through artificial insemination to a same-sex couple. As same-sex marriages and reproductive technologies continue to be more commonplace, we are seeing an increase in cases that involve such parties. The law, as always, lags behind the times a few years, but it is imperative that the courts begin setting a precedent to allow such parties to adequately address the family law issues that have been so familiar in opposite-sex couples.

In this case (Rosemari P. v. Kelly B., slip op. Supreme Ct-17960 (AK 2002)), the parties were in a domestic partnership for over 14 years. (When same-sex marriage finally became legal, they did not have a formal marriage.) While together, they decided to use a sperm-donor and have a child. Plaintiff carried the child and was thus biologically related. The couple then split in 2018 when the child had turned five. Child lived with Plaintiff and would have visitations with Defendant. But when Plaintiff decided to cut off contact, Defendant brought a custody claim. The trial court granted Defendant shared custody.

On appeal, the Supreme Court essentially defined Defendant as a “psychological parent,” one that maintains a parent-child type of relationship through daily interaction and fulfils the emotional, physical, and psychological needs of the child. Since the evidence at the trial level proved that Defendant had met the Alaska definition of “psychological parent,” there was no issue with the custody order.

North Carolina had a similar case with a similar outcome. In Mason v. Dwinnell, 190 N.C. App. 209 (2008), our courts decided a same-sex couple’s custody issue on very similar grounds. Instead of a “psychological parent,” here we use the term “de facto” or “intended parent.” Being an intended parent is shown by an intent to be the child’s parent, using factors like choosing a donor that physically resembled them, being a part of prenatal care and appointments, name being on the birth certificate or an attempt to put name on birth certificate, and sharing childcare responsibilities. There are many more factors, and each case is decided on an individual basis. But essentially the intended parent can have custody of the child.

In each case, the law is serving as a gatekeeper as to who can have custody of the child. And just because you meet one or another definition, it is not the end of the custody issue either. The courts still need to determine whether it is in the best interest of the child for someone to have custody.